*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 2 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL LUNA VASQUEZ,

Petitioner - Appellant, Nos. 98-1447 and 98-1482

v. (D. Colorado)

DONICE NEAL and ATTORNEY

GENERAL OF THE STATE OF

COLORADO,

Respondents - Appellees.

(D.C. No. 95-S-2966)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1Vasquez’s habeas petition was filed on November 29, 1995, well before

the passage of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the provisions

of the AEDPA do not apply to Vasquez’s case. 

2Vasquez should properly have sought a certificate of probable cause, rather

than a certificate of appealability, because, as noted above, his habeas petition

was filed before the enactment of the AEDPA. 

-2-

In these two consolidated appeals, Paul Luna Vasquez seeks certificates of

probable cause 1

 which would enable him to appeal two final orders of the district

court. In Appeal No. 98-1447, Vasquez seeks to appeal from the district court’s

order denying his habeas corpus petition, filed pursuant to 28 U.S.C. § 2254. In

Appeal No. 98-1482, Vasquez seeks to appeal from the district court’s order

denying his Fed. R. Civ. P. 60(b) motion. That motion sought relief from (1) the

order and judgment denying his habeas petition, and from (2) another order of the

district court holding that Vasquez’s “Motion for Certificate of Appealability,” 2

which the district court construed as also including a notice of appeal, was

untimely filed. We conclude that we are without jurisdiction to consider Appeal

No. 98-1447. With respect to Appeal No. 98-1482, we conclude that Vasquez has

not made a “substantial showing of the denial of [a] federal right,” Barefoot v.

Estelle , 463 U.S. 880, 893 (1983) (citation omitted), and therefore deny his

request for a certificate of probable cause.

BACKGROUND
-3-

In 1975, Vasquez was convicted in Colorado state court of second-degree

assault, for which he was sentenced to 0-10 years’ imprisonment, and first-degree

perjury, for which he was sentenced to 5 years’ imprisonment. He was paroled on

August 16, 1976. 

Less than one year later, his parole was revoked because he was charged

with and subsequently convicted of manslaughter. He was adjudicated a habitual

criminal, and was sentenced to a term of 25-40 years’ imprisonment. He was

paroled again, however, on September 10, 1988. At that time, Vasquez had

served 10 years, 11 months, and 18 days of the manslaughter sentence. In

addition, he had been awarded 14 years, 7 months, and 19 days of good time

credits toward his sentence. Therefore, he had received 25 years, 7 months, and 7

days credit toward discharge of his 25-to-40-year sentence.

Approximately three years later, in December 1991, Vasquez’s parole was

again revoked, due to charges of possession of a controlled substance. Vasquez

originally pled guilty to four counts of possession, and was sentenced to 6 years’

imprisonment, with the sentence to run concurrently with the 25-to-40-year

sentence on which he had been paroled. Vasquez withdrew this guilty plea,

however, and was later convicted by a jury of four counts of possession. He was

sentenced to twelve years’ imprisonment on each count, with the sentences to run
-4-

concurrent to each other but consecutive to the 25-to-40-year manslaughter

sentence.

Vasquez was not awarded good time credit—or any other kind of

credit—on his manslaughter sentence during the time he was on parole between

1988 and 1991. The Colorado statute relating to the issuance of good time credits

while on parole, Colo. Rev. Stat. § 17-2-206, was repealed in 1984. The crux of

Vasquez’s habeas petition is his argument that his manslaughter sentence should

have expired on April 2, 1991, some eight months before his parole was revoked.

Vasquez first filed a claim for post-conviction relief in Colorado state

court. The state district court denied the petition in February 1994, and the

Colorado Supreme Court affirmed the denial on April 3, 1995. Vasquez v.

Zavaras , 893 P.2d 105 (Colo. 1995).

On November 29, 1995, Vasquez filed a § 2254 petition in the district

court. His petition alleges that the application of the new Colorado parole statute,

rather than the statute in effect at the time he was sentenced, constituted a denial

of his right to due process of law and equal protection of the laws, and violated

the constitutional prohibition against ex post facto laws. Vasquez acknowledged

that he is not entitled to release from custody, in view of his four concurrent 12-

year sentences for possession of a controlled substance. However, Vasquez
-5-

sought “relief in the form of a declaration that he has completed his 1977

sentence, and did so while on parole.” Petitioner’s Br. at 9.

The district court assigned the case to a magistrate judge, who, on

January 5, 1996, issued a report recommending that the district court dismiss

Vasquez’s habeas petition on res judicata grounds, because Vasquez had raised

and previously litigated similar issues in separate § 1983 actions against prison

officials. The district court adopted the disposition of the magistrate judge in an

order issued on February 23, 1996. Vasquez appealed, and we directed the

district court to vacate its order dismissing Vasquez’s petition and to adjudicate

the petition on its merits, so long as Vasquez had exhausted state remedies. 

Vasquez v. Neal , No. 96-1083, slip op. (10th Cir. July 3, 1996); R. Doc. 26. 

On October 14, 1997, after appointing counsel to represent Vasquez and

after holding an evidentiary hearing, the magistrate judge issued a report

addressing the merits of Vasquez’s habeas petition. The magistrate judge found

that the application of the new parole scheme did not violate the constitutional

prohibition against ex post facto laws, and did not violate any other provision of

the Constitution. Accordingly, the magistrate judge recommended that the district

court deny Vasquez’s petition. On September 16, 1998, the district court adopted

the disposition of the magistrate judge and denied Vasquez’s petition. Judgment

was entered in the case on September 17, 1998.
-6-

While the case was pending before the district court, Vasquez apparently

became impatient at the pace with which the district court was proceeding, and on

August 31, 1998, filed a petition for a writ of mandamus with this court. Vasquez

sought an order directing the district court to proceed with his case. On

September 18, 1998, unaware that the district court had only the previous day

entered judgment in the case, we ordered the government to respond to Vasquez’s

petition for writ of mandamus. On September 28, 1998, the government filed a

brief with this court. On October 27, 1998, having been notified through the

briefs that the district court had already acted in this matter, we dismissed the

petition for writ of mandamus as moot.

On November 2, 1998, forty-six days after judgment was entered, Vasquez

filed a document captioned “Motion for Certificate of Appealability” with the

district court. R. Doc. 67. Because no separate notice of appeal had been filed,

the district court treated the document “as if it include[d] a notice of appeal.” R.

Doc. 69, at 1. The district court denied Vasquez’s request for a certificate, and

construed the document as an untimely notice of appeal, noting that the document

had not been filed within 30 days of entry of judgment, as required by Fed. R.

App. P. 4(a).

On December 15, 1998, counsel for Vasquez filed a motion seeking relief

from the district court’s order and judgment denying the habeas petition, and from
-7-

the order and judgment construing Vasquez’s November 2, 1998, filing as an

untimely notice of appeal. Vasquez argued that relief was proper under Fed R.

Civ. P. 60(b) and Fed. R. App. P. 4(a)(5), because, in light of the mandamus

petition pending before this court at the time the district court entered judgment

denying Vasquez’s petition, Vasquez’s failure to file a timely notice of appeal

constituted a mistake or excusable neglect. Specifically, Vasquez stated that “[i]t

was counsel’s understanding and belief that . . . because the matter was under

consideration in the Tenth Circuit Court of Appeals . . . , the time for filing the

Notice of Appeal . . . was tolled.” R. Doc. 74, at ¶ 14. Vasquez asked the district

court to vacate its original judgment, issued September 17, 1998, and reissue it at

a later date, which would allow Vasquez to file a timely notice of appeal.

On December 22, 1998, the district court denied Vasquez’s Rule 60 motion,

finding no excusable neglect in counsel’s failure to file a timely notice of appeal.

Vasquez now appeals from both the district court’s denial of his habeas

corpus petition, and from the district court’s denial of his motion for Rule 60(b)

relief.
-8-

DISCUSSION

I. Appeal No. 98-1447
-9-

Fed. R. App. P. 4(a)(1)(A) provides that “the notice of appeal . . . must be

filed with the district clerk within 30 days after the judgment or order appealed

from is entered.” In this case, judgment was entered on September 17, 1998;

Vasquez had until October 17, 1998 to file a notice of appeal. Vasquez, however,

filed nothing until November 2, 1998, when his “Motion for Certificate of

Appealability” was filed, which the district court construed as a joint motion for

certificate of probable cause and a notice of appeal.

Fed. R. App. P. 4(a)(5) provides that “[t]he district court may extend the

time to file a notice of appeal if: (i) a party so moves no later than 30 days after

the time prescribed by this Rule 4(a) expires; and (ii) that party shows excusable

neglect or good cause.” All requests for extensions of time under Fed. R. App. P.

4(a)(5) must be filed with the district court, not the court of appeals. See Savage

v. Cache Valley Dairy Ass’n , 737 F.2d 887, 889 (10th Cir. 1984). Thus, Vasquez

had until November 16, 1998, to file any request for an extension of time to file

his notice of appeal. Vasquez’s document filed on November 2, 1998, even

construed liberally, did not contain a request for extension of time. Perhaps

Vasquez’s Rule 60(b) motion, filed December 15, 1998, could be construed as a

Rule 4(a)(5) motion for extension of time, but that motion was not filed on or

before November 16.
-10-

“[T]he time periods established by Fed. R. App. P. 4 are ‘mandatory and

jurisdictional.’” Senjuro v. Murray , 943 F.2d 36, 37 (10th Cir. 1991) (quoting

Browder v. Department of Corrections , 434 U.S. 257, 264 (1978)); see also

Gooch v. Skelly Oil Co. , 493 F.2d 366, 368 (10th Cir. 1974) (stating that “[a]

court of appeals acquires jurisdiction of an appeal only upon the filing of a timely

notice of appeal and this requirement is mandatory and jurisdictional”). Because

Vasquez did not file a timely notice of appeal, or even a timely request for

extension of time, we are without jurisdiction to hear his appeal.

II. Appeal No. 98-1482

Because the district court’s order denying Vasquez’s Rule 60(b) motion

was filed on December 22, 1998, and Vasquez filed a notice of appeal on

December 23, 1998, well within the 30-day period, we have jurisdiction to

consider Appeal No. 98-1482. In the Rule 60(b) motion, Vasquez argued, as

discussed above, that his failure to file a timely notice was excused by the

“extraordinary circumstances” of the pending mandamus petition, and he asked

the district court to vacate its September 17, 1998, judgment and reissue it. R.

Doc. 74, at ¶ 31. We have approved of this type of Rule 60(b) relief in

appropriate cases. See Wallace v. McManus , 776 F.2d 915, 917 (10th Cir. 1985).
3Had Vasquez’s habeas petition been filed after the passage of the AEDPA,

our inquiry would be simpler. The updated version of 28 U.S.C. § 2253 allows

certificates of appealability to issue only upon a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (emphasis added). We

have since held that certificates of appealability may not issue for violations of

federal statutes or federal rules, but only for violations of constitutional rights. 

See United States v. Gordon, 172 F.3d 753 (10th Cir. 1999). 

-11-

Because “[w]e review . . . the disposition of Rule 60(b) motions for an

abuse of discretion,” Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co. ,

170 F.3d 985, 992 (10th Cir. 1999), and because a certificate of probable cause

should issue only when a habeas petitioner has made a “substantial showing of the

denial of [a] federal right,” Barefoot , 463 U.S. at 893 (citation omitted), “a

certificate of probable cause to appeal the denial of [a] Rule 60(b) motion should

issue only if [the petitioner] has made a substantial showing that the district court

abused its discretion by denying the Rule 60(b) motion,” Lindsey v. Thigpen , 875

F.2d 1509, 1512 (11th Cir. 1989); see also Lynch v. Blodgett , 999 F.2d 401, 402-

03 (9th Cir. 1993). 3

We note also that “Rule 60(b) is not intended to be a substitute for a direct

appeal.” Cashner v. Freedom Stores, Inc. , 98 F.3d 572, 576 (10th Cir. 1996); see

also Halicki v. Louisiana Casino Cruises, Inc. , 151 F.3d 465, 471 (5th Cir. 1998)

(stating that “Rule 60(b) is not a substitute for a timely appeal” and “[c]ourts

should not grant relief when the moving party has not been diligent in protecting

its own rights by filing an appeal from an adverse judgment” (citation omitted));
-12-

United States v. O’Neil , 709 F.2d 361, 373 (5th Cir. 1983) (stating that “[e]xcept

in truly extraordinary cases, Rule 60(b) relief should not be used to extend the

time for appeal”).

Vasquez grounded his motion in Rule 60(b)(1) and Rule 60(b)(6). See R.

Doc. 74, at ¶ 31. Rule 60(b)(1) allows a court to grant relief from a judgment for

“mistake, inadvertence, surprise, or excusable neglect.” Vasquez argues that,

because of the pending mandamus petition, his failure to file a timely notice of

appeal constituted a mistake or excusable neglect. However, “Rule 60(b)(1) relief

is not available for a party who simply misunderstands the legal consequences of

his deliberate acts.” Cashner , 98 F.3d at 577; see also Pelican Prod. Corp. v.

Marino , 893 F.2d 1143, 1146 (10th Cir. 1990) (stating that “[c]arelessness by a

litigant or his counsel does not afford a basis for relief under Rule 60(b)(1)”). 

Indeed, “attorney error based on a misunderstanding of the law [is] an insufficient

basis for excusing a failure to comply with a deadline.” Advanced Estimating

Sys., Inc. v. Riney , 130 F.3d 996, 998 (11th Cir. 1997) (also stating that “no

circuit that has considered the issue . . . has held that an attorney’s failure to

grasp the relevant procedural law is ‘excusable neglect’”). Vasquez and his

attorney should not have assumed that the 30-day notice of appeal period did not

start to run until the mandamus proceedings were completed. This type of

misunderstanding “is not the sort of mistake on which . . . Rule 60(b)[(1)] relief
-13-

could be based.” O’Neil , 709 F.2d at 373. The district court did not abuse its

discretion in determining that this action was not excusable neglect.

Rule 60(b)(6) is a catch-all provision which allows a court to grant relief

from a judgment for “any other reason justifying relief from the operation of the

judgment.” However, this “grand reservoir of equitable power,” Pierce v. Cook &

Co., 518 F.2d 720, 722 (10th Cir. 1975) (en banc) (citations omitted), may be

invoked only “in extraordinary circumstances and only when necessary to

accomplish justice.” Cashner , 98 F.3d at 579. For instance, courts have granted

relief under Rule 60(b)(6) “when, after entry of judgment, events not

contemplated by the moving party render enforcement of the judgment

inequitable,” id. (citing cases); where the moving party is an indigent,

unrepresented litigant, see Pelican Prod. Corp. , 893 F.2d at 1147 (citing cases); or

for other extraordinary reasons. No such compelling reasons exist in this case. 

“[T]he broad power granted by clause (6) is not for the purpose of relieving a

party from free, calculated and deliberate choices he has made. A party remains

under a duty to take legal steps to protect his own interests.” Cashner , 98 F.3d at

580 (citation omitted). We find no abuse of discretion in the district court’s

decision not to grant Vasquez relief under Rule 60(b)(6).
-14-

Accordingly, we conclude that Vasquez has failed to make a substantial

showing that the district court abused its discretion by denying the Rule 60(b)

motion.

CONCLUSION

For the foregoing reasons, we conclude that we are without jurisdiction to

hear Appeal No. 98-1447, and we DISMISS that appeal. In addition, with respect

to Appeal No. 98-1482, we conclude that Vasquez has failed to make a substantial

showing of the denial of a federal right, and we therefore DENY his request for a

certificate of probable cause and DISMISS that appeal.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge